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Australian Law Assignment

Subject: Legal

Topic: Dominance of Power

Which of the Legislative, Executive and Judicial powers is dominant in the Australian political system?

Reitz (2008) observes that, Australian constitution exemplifies the separation of powers; hence delineate the functions of the legislature, Executive and judiciary. The object behind separation of power among the three branches is to develop the mechanisms for preventing overly power concentration to one arm of the government. The institutions of the government in Australia thus comprise of the legislative, Executive and judicial branches. The legislature/parliament is involved in making and amending of laws which are put into operation by the Executive and interpreted by the judiciary. Separate personnel are designed to carry out the powers and functions in each branch.  The parliament/legislature comprises of the Queen, who is represented by the Governor-General, Senate and House of Representatives. The Executive comprise of the Prime Minister and the ministers who puts the law into action. On the other hand, the judiciary that makes judgments about the law involves the subjects over the High Court and the federal courts.

Accordingly, single agency cannot exercise a complete authority as each has to be independent of the other. Division of power hence prevents absolutism brought about by concentrating the branches to a single authority. The checks and balances are thus created where no single branch can exceed its power while ensuring the rule of law and protection of individual rights. Halligan, (2007) argues that, apparently, a complete separation of powers in Australia lacks as various roles of parliament, Executive and judiciary overlap. One of such instances can be visualized through the fact that the members of parliament are also members of the Executive. On the other hand, the Executive and High Court judges are officially appointed by Governor-General who exercises the powers as part of parliament. The connection between the separation of powers and political system arises from the facts that, the way the Australia law is made and managed depends on the personnel appointed. A party with the support of majority members in the House of Representatives remains in the government. Responsible government is incorporated to work alongside the three arms of the government and thus parliament begets on the power of the Executive arm which is answerable to it (Ganghof, 2012).

As Chalmers & Davis (2000) observes, the Commonwealth Constitution has various implications to the powers divisions among the three branches of the government. There is a conventional wisdom that assumes that the basis of Executive dominance and control over the parliament is through the disciplined two-party system. There are operational and theoretical concerns that directly show where power is invested including the composition of the Executive, election of Ministers and the responsible government. The relationship that emerges between the Executive and the parliament becomes the basis for the system of government. This has a central role in determining the characteristic of national politics, the balance between the broader political system and the government and the role of public institutions. There are no explicit relationship between the Parliament and the Ministers which promote the disciplined political parties and the Executive dominance. The power from the foundation of the constitution was skewed in the favor of the Executive which replaces the vital function of the parliament; decision making.

According to Schneider & Abedi (2006), the Executive roles arise from the ambiguity springing from the constitution hence it controls the means that would lead to reform. The party government and the extension of the Executive dominate the Commonwealth Parliament. The historical development has seen the rise of political parties which then undermines the notions of a responsible government designed by the Parliament. Though there are struggles between the Senate, House of Representatives and the Executive, the outcome has always favored the Executive (Thomas, 2009). The Parliament has consistently remained as a forum whose control and dominance is largely by the Ministers of state. Though there is increased scrutiny by the Senate since its formation due to minor party representation, the power of government is not really constrained.  

Chalmers & Davis (2000) continues that, the persistence of preferential voting and single member constituencies ensure that parties remain high in control of the Parliament.  The parties controls the Executive while the Executive control the Legislature which means that real reforms cannot be achieved in Australia without fundamental constitutional changes.  According to Sloane (2008), the belief in responsible government left an implicit presumption that allowed the Executive to evolve its dominance. The vacuum left in the Constitution has always been filled by the Ministers which in real sense should be filed by the Legislature.  The Constitution vests the Legislative power to the Federal Parliament consisting of Governor-General, Senate and House of Representatives. However, in practice, the Ministers assume control over the Parliament’s agenda, frequency of meeting, order of business and legislative program.  

Responsible government is not set in the constitution but is based on the custom and convention.  The intertwined issue about the political power and the dominant arm of the government arise from the fact that the parliamentary government gives rise to an Executive government that comes from within a parliament and rules over the works of the parliament. On the other hand, responsible government which is a unique feature of Australia governance means that the Executive is responsible to the legislature making the legislature more dependent on the Executive (Loney, 2008). In other systems such as United States, there is a definite contrast as the Executive is separate which means that, it is not directly answerable to the parliament and thus the viewpoints between the two arms do not overlap as both are independent from each other. The parliamentary government brings an overlap to the functions of the legislature and the Executive. As members of the Executive, the ministers are part of the parliament, the explicit separation of the powers and functions are thus questionable (Kumarasingham, 2012).

The other major function of parliament is provision of the members of Executive government. The constitution allows the party with majority of representatives or coalition of parties with majority of members to assume government where the leader of the party becomes the prime minister (Schneider & Abedi, 2006). Consequently, the party with stronger support and influence bears the Executive which assumes control of the roles of the arms and particularly the legislature. The laws that are in favor or neutral to the Executive will receive an upper hand despite the feel by the opposition and parliamentary representatives from minority party. The Judiciary has less influence on new legislations and relies on the legislature which in actual sense is influenced by the Executive.

Loney (2008) argues that, looking at the functions of the Executive branch of Australian government, it is possible to argue that the dominant power is held by the Executive in the political system. The day to day administration, governance of the country and execution of laws is invested in the Executive. The laws that are passé by parliament are therefore carried out by the Executive. The Governor-General forms a part of the Executive and act only on advising the Executive Council and the Prime Minister. The Governor-General is advised by the Prime Minister for calling for elections every three years for House of Representatives. The connection between the two arms of the government gives prominence to the Executive.  As Gelber (2006) points out, the reason behind this is from the fact that, as the Ministers, the Prime Ministers and the Cabinet are part of the parliament who pass laws, and part of the majority, their functions are pervasive in both arms. The essence of power is based on the reasoning that, the Executive is formed from the party that commands the majority in the parliament.

As Ganghof (2012) points out, in practice of law, the Executive government has more functions than just administering the government and execution of the law that the parliament passes. The government must exercise its control over the House of Representatives in order for it to survive. Practically, that means that the Executive determines the legislations that the House of Representatives debates and passes. This is the most conspicuous dividing line that explains the dominance of the Executive over the other arms of the government, the legislature and the judiciary. Considering the origin of the issues like the budget appropriations and tax proposals which are highly related to the functions of the Executive, the House of Representatives is highly influenced by the powers of the Executive.

Reitz (2008) continues with his argument that the Prime Minister is a pivotal person when it comes to the work of the Executive governments. Apart from being a focus of media and public attention, there are immense powers held by the post such as to determine the government policy directions and shaping the composition of the government. The Cabinet and the Ministry with the members of Parliament that the Prime Minister chooses serves in the Executive arm to administer the various departments of the government.  The Executive gives legal effects to the decisions of the Cabinet and oversees various other functions.

In conclusion, the dominance of the Executive over the Legislature and the Judiciary is based on implicitness of the Constitution. The preference of a responsible government for Australia democracy had the aspect of ministerial accountability to the legislature. However, the requirement for a responsible government was not explicitly spelled out nor was the mechanisms that would sustain it.  Lack of spelled out ministerial accountability leads to the Executive dominance pattern.  



Chalmers, J. & Davis, G. (2000). Power: Relations Between the Parliament and the Executive. Politics and Public Administration Group. < >

Ganghof, S. (2012). Bicameralism As a Form of Government (Or: Why Australia and Japan Do Not Have a Parliamentary System). Parliamentary Affairs, Forthcoming.

Gelber, K. (2006). High court review 2005: The manifestation of separation of powers in Australia. Australian Journal of Political Science41(3), 437-453.

Halligan, J. (2007). Accountability in Australia: control, paradox, and complexity. Public Administration Quarterly, 453-479.

Kumarasingham, H. (2012). Exporting Executive accountability? Westminster legacies of Executive power. Parliamentary Affairs.

Loney, P. (2008). Executive Accountability to Parliament—Reality or Rhetoric?.Australian Parliamentary Review23(2), 157-165.

Reitz, J. C. (2008). Politics, Executive Dominance, and Transformative Law in the Culture of Judicial Independence. U. St. Thomas LJ5, 743.

Schneider, S. G., & Abedi, A. (2006). Winning is Not Enough: A Reconceptualization of Single-Party Dominance in Established Democracies. Inannual meeting of the CPSA, Toronto, ON, June (pp. 1-3).

Sloane, R. D. (2008). Scope of Executive Power in the Twenty-First Century: An Introduction, The. BUL Rev.88, 341.

Thomas, P. G. (2009). Parliament scrutiny of government performance in Australia. Australian Journal of Public Administration68(4), 373-398.